FIRST DIVISION

[G.R. No. 77050. February 6, 1990.]

TOMAS BAYAN , petitioner, vs. COURT OF APPEALS and PEOPLE OF THE

PHILIPPINES , respondents.

DECISION

GANCAYCO , J : p

This is a petition for review of the decision of the Court of Appeals dated August 27, 1982
in CA-G.R. No. 16205-CR affirming with modification the conviction of petitioner Tomas
Bayan together with Daniel Tobias and Amado de Vera of the crime of malversation thru
falsification of public documents and imposing on them the indeterminate penalty of from
eight (8) years and one (1) day of prision mayor in its medium period as minimum to
fourteen (14) years of reclusion temporal as maximum, with perpetual special
disqualification and a fine of P9,746.00, to indemnify the Municipality of Polomolok in the
same amount, without subsidiary imprisonment in case of insolvency and to pay the costs.
1

The facts as found by the appellate court are as follows:

"In 1967, Leoncio B. Matullano was the Municipal Treasurer of Polomolok, South
Cotabato. He was on leave from September 1 to November 30, of that year. In his
place, Amado de Vera was designated Acting Municipal Treasurer. Appellant
Tomas D. Bayan was then the mayor of Polomolok, while Daniel Tobias was a
Chief of Section in the Office of the Provincial Auditor of South Cotabato. (tsn.,
pp. 186-190, April 8, 1969; Exhibit G; tsn., p. 100, April 7, 1969; Exhibit V).
"In the afternoon of November 6, 1967, Tobias ordered from Engineer Ramon G.
Fernandez, one of the proprietors of the Fernandez Hollow Block Factory of
Dadiangas, General Santos, South Cotabato, fourteen (14) pieces of culverts, 24"
diameter x 1 meter, with a unit price of P33.00, or for the total price of P946.00.
Fernandez was instructed by Tobias to deliver the culverts at the back of the
Municipal Building of Polomolok. Fernandez was able to deliver the twenty-four
(24) pieces of culverts at around 7:00 p.m. on November 7, 1967, at the back of
the Municipal Building of Polomolok. No one was around to receive the delivery.
Fernandez, however, left the culverts at the back of said Municipal Building, as
they were heavy and it would be difficult for him to go back and forth from
General Santos to Polomolok to deliver them (tsn., pp. 10-14, 54, April 7, 1969).

"On November 8, 1967, Tobias went to Fernandez' Office at Dadiangas, General

Santos. Thereat, Fernandez gave Tobias the original copy of a Cash Invoice No.
1885 (Exhibit A) wherein aforesaid order was reflected. Except for Fernandez'
signature, the entries on that cash invoice were made by him with a pencil. His
signature thereon was written in ink because, as stated by him:
'A Before that there were occasions when I signed it and my wife
will just issue to some other persons. I have my signature
already printed in cash invoice.' (tsn., p. 21, April 7, 1969).
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 The pencil entries as well as Fernandez' signature were impressed on the carbon
duplicate of the cash invoice (Exhibit A-1). Fernandez also gave Tobias a Delivery
Receipt No. 402 dated November 8, 1967 (or 492) (Exhibits O and S) for the
subject twenty-four (24) culverts. On the same occasion, Fernandez signed a
blank Municipal Voucher (Exhibit D) which Tobias said would be filled up later on
(tsn., pp. 1825, 33-34, April 7, 1969).

"On November 11, 1967, Fernandez received P996.00 from Tobias, representing
P946.00 for the twenty-four (24) culverts delivered and P50.00 for trucking
expenses (tsn., pp. 15 & 63, April 7, 1969).

"On December 1, 1967, Leoncio B. Matullano returned from his leave and
assumed his duties as Municipal Treasurer of Polomolok. Amado de Vera, the
Acting Municipal Treasurer, turned over to Matullano the cashbook of the Office
of the Municipal Treasurer the cash appearing in the cashbook, and the properties
inside the Municipal Building. The turn-over was witnessed by Nicolas Lachica,
Chief of the Investigation and the Inspection Division of the Provincial Treasurer
of South Cotabato. Lachica had been directed to witness the transfer of office
between the outgoing Acting Municipal Treasurer and the returning Municipal
Treasurer of Polomolok (tsn., pp. 190-191, April 8, 1969; p. 103, April 7, 1969).

"On December 2, 1967, Matullano came across a Municipal Voucher dated

October 31, 1967 (Exhibit H), evidencing payment by the Municipality of
Polomolok to the Fernandez Hollow Block Factory the sum of P10,692.00 for
reinforced concrete pipes of different sizes allegedly delivered to Polomolok for
its use. This Municipal Voucher was approved for payment by appellant Tomas
C. Bayan. Therein, he certified that the articles covered by the voucher, conformed
to specifications as to quantity, quality and prices actually being paid for. He
likewise certified that the amount of P10,692.00 covered by the voucher was
correct and just, that the expenses were incurred under his direct supervision and
were necessary for the public service, and that the prices stated were the lowest
obtainable and were just and reasonable and not in excess of current rates in the
locality. On his part, Acting Municipal Treasurer Amado de Vera certified in the
same Municipal Voucher that the amount of P10,692.00 was incurred under the
authority of the Municipal Council. This voucher was not signed by a
representative of the Fernandez Hollow Block Factory (tsn., p. 208, April 8, 1969).

"Another Polomolok Municipal Voucher containing the same entries made on

Exhibit H (Exhibit D) was found to be among one of the documents relating to the
same transaction. This was the Municipal Voucher (Exhibit D) which was signed
by Fernandez in blank. It showed the payment of P10,692.00 to the Fernandez
Hollow Block Factory on November 17, 1967, allegedly for reinforced concrete
pipes of different diameters (tsn., pp. 33-34, April 7, 1969).

"The documents supporting aforesaid Polomolok Municipal Voucher (Exhibits D

and H) were the following:

'(a) Polomolok Requisition and Issue Voucher dated September

2, 1967, for Ninety-three (93) pieces of 24" diameter x 1.00 meter reinforced
concrete pipes and two hundred (200) pieces of 18" diameter x 1.00
reinforced concrete pipes. In this document, Acting Municipal Treasurer de
Vera certified that funds were available for the purpose stated therein, viz:
maintenance of municipal roads and streets. Appellant Bayan approved
this Voucher and certified that the supplies requisitioned were necessary
and will be used solely for the purpose stated. He further acknowledged
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 receipt of the supplies requisitioned. Tobias approved the requisition for
public bidding, in behalf of the Provincial Auditor (Exhibit I);
'(b) Polomolok Advertisement dated September 2, 1967
allegedly addressed to Clariza Concrete Product of General Santos,
Cotabato, for ninety-three (93) pieces of 24" x 1.00 meter reinforced
concrete pipes, no unit cost stated, and two hundred (200) pieces of 18"
diameter x 1.00 meter reinforced concrete pipes, no unit cost, and initialed
by Tobias on September 13, 1967 (Exhibit N);

'(c) Advertisement dated September 2, 1967, addressed to the

Fernandez Hollow Block Factory of General Santos, Cotabato, for ninety-
three (93) pieces of 24" diameter x 1.00 meter reinforced concrete pipes
with a unit cost of P44.00 and two hundred (200) pieces of 18" diameter x
1.00 meter reinforced concrete pipes with a unit cost of P33.00 or for the
total cost of P10,692.00, unsigned by Acting Municipal Treasurer de Vera.
This document was initialed by Tobias on September 13, 1967. (Exhibit B);

'(d) An undated Bidder's Tender signed by one Adolfo de los

Santos in behalf of the Fernandez Hollow Block Factory, and initialed by
Tobias on September 13, 1967. This Bidder's Tender did not specify the
quantity of supplies bidded for, their description, unit price, and total price
(Exhibit C);

'(e) Another blank and undated Bidder's Tender allegedly

submitted by Clariza Concrete Product of General Santos, Cotabato,
initialed by Tobias on September 13, 1967. This Bidder's Tender had
written across its face the following: 'occupied and has a government
contract for pipes of the 3rd engineering district' (Exhibit J);

'(f) Another blank and undated Bidder's Tender initialed by

Tobias on September 13, 1967 (Exhibit K);
'(g) An Abstract of Canvass Or Bid dated September 13, 1967,
signed by appellant Bayan as Mayor of Polomolok and requisitioner, de
Vera as Acting Municipal Treasurer, and Bonifacio Salazar, Chairman on
Award. This document reflected the requisition of (Exhibit I) and
advertisement (Exhibit B) for two hundred ninety-three (293) culverts of
different dimensions, and awarded contract to Fernandez Hollow Block
Factory. Clariza Concrete Products was therein made to appear as not
interested due to lack of laborers and the Dadiangas Industrial Products as
being occupied with a government contract for pipes of the Third
Engineering District (Exhibit L);

'(h) A Purchase Requisition For Supplies dated September 13,

1967, addressed to Fernandez Hollow Block Factory and signed by
appellant Bayan and Acting Municipal Treasurer de Vera. This document
requested Fernandez Hollow Block Factory to deliver to the Municipal
Treasurer's Office of Polomolok Ninety-Three (93) 24" diameter x 1.00
meter reinforced concrete pipes, unit cost P44.00, and one hundred
(100)18" diameter x 1.00 meter reinforced concrete pipes, unit cost P33.00,
for the total price of P10,692.00. A typographical mistake was made in
stating the quantity ordered for the 18" diameter x 1.00 meter reinforced
concrete pipes. The correct number ordered was two hundred (200) pieces
since the total price stated therefor was P6,600.00 (Exhibits F, F-1 and F-2);
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 '(i) A Report of Inspection signed by Acting Municipal Treasurer
de Vera and initialed by Tobias on November 11, 1967. This document
certified to the alleged delivery by Fernandez Hollow Block Factory at job
sites of aforesaid two hundred ninety-three (293) reinforced concrete pipes
valued at P10,692.00 (Exhibits M and M-1);
'(j) A Delivery Receipt No. 402 or 492 of Fernandez Hollow Block
Factory, dated October 29, 1967. This document stated the delivery to
Polomolok of ninety-three (93) pieces of 24" diameter x 1.00 meter
reinforced concrete pipes for P4,092.00, and two hundred (200) pieces of
18" x 1.00 meter reinforced concrete for P6,600.00. Tobias wrote the
following statement across the face of this document: 'Inspected this 29th
day of October 1967 and verified to have been delivered at different job
sites.' (Exhibit O);

'(k) An alleged Taxpayer's Certificate dated September 29, 1967,

executed by one Adolfo de los Santos for Fernandez Hollow Block Factory,
and sworn on September 29, 1967, before appellant Bayan. This document
was initialed by Tobias on October 29, 1967 (Exhibit E).'

"The alleged payment of P10,692.00 to Fernandez Hollow Block Factory was

entered by Acting Treasurer de Vera on page 58 of the Polomolok Official Cash
Book (Exhibit P and P-1; tsn., pp. 198-199, April 8, 1969). The same payment
likewise appeared in the ledger of Polomolok as an expenditure for 1967-1968
(Exhibits Q and Q-1), and in the Polomolok Municipal Treasurer's Journal
(Exhibits R and R-1; tsn., pp. 201-205, April 8, 1969).
"Matullano was surprised at seeing the Voucher (Exhibits D and H) for P10,692.00
as having been paid by Polomolok. One copy of the voucher (Exhibit D) was not
even signed by the creditor. There was no appropriation available for this item.
Besides, there were concrete culverts of the same size manufactured by
Polomolok and these had been used by the Municipality. Finally, expenditures of
amounts exceeding P10,000.00 had to be approved by the Provincial Auditor. The
voucher in question was not (tsn., pp. 192-193, April 8, 1969).

"On December 4, 1967, Matullano referred the matter to the Assistant Treasurer of
Polomolok, Gerardo Barrientos. Barrientos said that he did not know of any
delivery by Fernandez Hollow Block Factory for two hundred ninety three (293)
culverts. Barrientos knew that Polomolok still had thirty nine (39) culverts
manufactured by Polomolok in stock. Besides aforesaid thirty-nine (39) culverts,
he found only twenty two (22) of the culverts delivered by Fernandez Hollow
Block Factory, in the yard behind the Municipal Building (tsn., pp. 281-284, 289,
May 5, 1969).
"Together with Nicolas Lachica, Chief of Investigation and Inspection Division of
the Office of the Provincial Treasurer of South Cotabato, Barrientos questioned
Engineer Ramon Fernandez, Jr. on aforesaid transaction. In the confrontation
among the three of them on December 4, 1967, Fernandez stated that he delivered
only twenty four (24) culverts behind the Municipal Building of Polomolok on
November 7, 1967; that on November 8, 1967, he issued Tobias Cash Invoice No.
185 (Exhibit A), the entries on which were written with a pencil, and Delivery
Receipt No. 402 (or 492) [Exhibit O] the entries on which were likewise written with
a pencil; Cash Invoice No. 1885 (Exhibit A) and Delivery Receipt No. 402 (or 492)
were altered to show the purchase of two hundred ninety three (293) culverts
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 instead; that the alteration of Cash Invoice No. 1885 (Exhibit A) may be seen by
comparing it with its carbon duplicate (Exhibit A-1), which shows the purchase of
twenty-four (24) culverts only; that Delivery Receipt No. 402 (or 492) [Exhibit O]
was also altered as it shows the delivery of two hundred ninety-three (293)
culverts, while its duplicate (Exhibit S) shows the delivery of twenty-four (24) only;
that he had not seen before the Advertisement For Bid (Exhibit B) allegedly sent to
Fernandez Hollow Block Factory; that the Tender's Bid (Exhibit C) signed by one
Adolfo de los Santos was not submitted by Fernandez Hollow Block Factory; that
he signed the Municipal Voucher (Exhibit H) in blank, upon the representation by
Tobias that it would be filled up later on; that the Fernandez Hollow Block Factory
did not submit the Taxpayer's Certificate (Exhibit E) nor the Tender's Bid (Exhibit
B), and the person who signed them as Adolfo de los Santos, was not known to or
employed by Fernandez Hollow Block Factory; that he did not receive the
Purchase and Requisition for Supplies (Exhibit F) and saw it for the first time
when the transaction was later on investigated by the Fiscal's Office; that he
received only P946.00 from Tobias, and not P10,692.00 (tsn., pp. 16-70, 104-135,
April 7, 1969);
"After December 4, 1967, Barrientos went around the different barrios of
Polomolok, but could find no trace of the culverts allegedly delivered by
Fernandez Hollow Block Factory other than the twenty-two (22) pieces lying
behind the Municipal Building of Polomolok (tsn., pp. 286-290, 297-302, May 5,
1969). In the administrative investigation conducted by Lachica of the
transaction, he subpoenaed Adolfo de los Santos, but said Adolfo de los Santos
did not appear and was certified by the Chief of Police charged with serving the
subpoena to be non-existent (tsn., p. 137, April 7, 1969)." 2

The herein petition is predicated on the following assigned errors allegedly committed by
the appellate court:
"I
THE RESPONDENT COURT OF APPEALS ERRED IN INTERPRETING THE
DOCUMENTARY EVIDENCE AND THE CIRCUMSTANCES ADDUCED IN THE CASE
AS CONVINCINGLY SHOWING THE ALLEGED CONSPIRACY BETWEEN HEREIN
PETITIONER AND HIS CO-ACCUSED DANIEL TOBIAS AND AMADO DE VERA TO
MALVERSE THE PUBLIC FUNDS OF THE MUNICIPALITY OF POLOMOLOK,
SOUTH COTABATO.

II
THE RESPONDENT COURT OF APPEALS ERRED IN INTERPRETING EXHIBITS `A'
AND `O' AS HAVING BEEN FALSIFIED BY HEREIN PETITIONER AND HIS CO-
ACCUSED ON THE BASIS OF MERE PRESUMPTION AND NOT ON THE EVIDENCE
ON THE RECORD.

III
THE COURT OF APPEALS ERRED IN INTERPRETING THE EVIDENCE, BOTH
DOCUMENTARY AND ORAL, ON RECORD TO HOLD THAT PETITIONER HEREIN IS
GUILTY OF THE CRIME CHARGED.

IV
THE COURT OF APPEALS ERRED IN NOT ACQUITTING THE HEREIN PETITIONER
DESPITE THE ABSENCE OF THE VERY ESSENTIAL ELEMENTS OF THE CRIME
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 CHARGED." 3

In the information that was filed against petitioner it is alleged:

"That on or before or after October 31, 1967, in the poblacion, Municipality of
Polomolok, Province of South Cotabato, Philippines, and within the jurisdiction of
this Honorable Court, accused Tomas D. Bayan, being then the municipal mayor
of Polomolok, South Cotabato, and as such responsible for the improvement of
the municipality and to that end had to purchase or cause to be purchased the
needed materials; accused Amado de Vera who was duly designated Acting
Municipal Treasurer of Polomolok, South Cotabato, and as such responsible and
accountable for all funds and properties belonging to the municipality by reason
of his position; accused Daniel Tobias, clerk of the Provincial Auditor's Office and
in charge of passing in audit all vouchers and allied papers presented to him,
conspiring confederating and mutually helping each other, and taking advantage
of their public positions, did then and there willfully, unlawfully and feloniously
falsify a public document, namely: a municipal voucher of the municipality of
Polomolok, South Cotabato, by causing it to appear therein that 200 reinforced
concrete pipes of the size 18 inches in diameter by 100 meter long, costing
P6,000.00 and 93 reinforced concrete pipes of the size of 24 inches in diameter
by 1.00 meter long, costing P4,092.00, or a total of P10,692.00, Philippine
Currency was delivered by the Fernandez Hollow Block Factory to the municipality
of Polomolok, South Cotabato, and received by it, when in truth and in fact, as all
of them knew, only 10 reinforced concrete pipes of the size of 18 inches in
diameter by 1.00 meter long costing P330.00 and 14 reinforced concrete pipes of
the size of 24 inches in diameter by 1.0 meter long costing P946.00, Philippine
Currency were delivered by the Fernandez Hollow Block Factory and received by
the said municipality, thus attributing to the said Fernandez Hollow Block Factory
acts or statements other than those in fact made by it, and the said three accused,
knowing the falsity of the voucher aforestated, conspiring, confederating and
mutually helping each other, and taking advantage of their public positions, did
then and there willfully, unlawfully and feloniously cause the said false voucher
to be certified as true by accused Amado de Vera, in the amount of P10,692.00
Philippine Currency out of the funds of the municipality entrusted to his custody,
and once paid all the accused appropriated and converted to their own use and
benefit, in pursuance of their conspiracy, the amount of P9,746.00 Philippine
Currency, which is the cost of 269 undelivered reinforced concrete pipes, the
difference between the 293 concrete reinforced pipes referred in the false
municipal voucher, and the 24 concrete reinforced pipes costing P946.00
Philippine Currency, that were actually delivered by the Fernandez Hollow Block
Factory and duly paid for to it, to the damage and prejudice of the municipality of
Polomolok, South Cotabato and the Government in the amount of P9,746.00,
Philippine Currency which amount they failed to return despite repeated demands
to that effect.
Contrary to law, specially Arts. 171 and 217 in relation to Articles 14 and 48 of the
Revised Penal Code, as amended." 4

From the foregoing it is clear that petitioner, who was then the municipal mayor of
Polomolok, is charged with conspiring with accused Amado de Vera, then Acting Municipal
Treasurer of Polomolok and as such an accountable public officer, and Daniel Tobias, Clerk
of the Provincial Auditor's Office, in falsifying a municipal voucher of the municipality by
causing it to appear that 293 pieces of reinforced concrete pipes costing P10,692.00 had
been delivered by the Fernandez Hollow Block Factory (Fernandez for short) to the
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 municipality of Polomolok, when in fact only a total of 24 pieces were delivered and
received costing P946.00, and that they appropriated the amount of P9,746.00 which is
the cost of the 269 undelivered pieces to the damage and prejudice of the government. Cdpr

The findings of facts of the appellate court are conclusive in this proceeding, and it is on
the basis thereof that this petition must be resolved.
A careful examination of the said findings of facts of the appellate court and of the records
of the case shows that the prosecution has not established conspiracy between petitioner
and the two other accused as to justify a conclusion that petitioner is guilty of the offense
charged. On the contrary, certain circumstances demonstrate not only the absence of such
unity of action and purpose which is essential to establish conspiracy but more especially,
to establish the innocence of petitioner.

Because of the flashfloods causing damage to life and property in Polomolok in 1967,
petitioner who was the municipal mayor, called the municipal council to an emergency
session in his residence to remedy the impassable roads and serious problems of erosion.
Petitioner summoned the municipal treasurer, Leoncio Matullano, to the meeting, but
Amado de Vera who was acting in his place attended the session. Petitioner met him for
the first time then. De Vera was asked to discuss the financial condition of the municipality
as there was a need to purchase 293 pieces of culverts of different sizes. De Vera
informed them that there was a surplus of P27,000.00, thus, the council approved the
budget in principle. 5
A requisition and issue voucher dated September 2, 1967 for 293 culverts of various sizes
was prepared by de Vera who certified to the availability of the funds for the purpose while
petitioner approved the same and certified to the necessity of the supplies for the purpose
stated. Tobias approved the requisition for public bidding. 6
The corresponding advertisement for bids was issued by de Vera and initialed by Tobias,
the bidder's tender appears to have been submitted, and the abstract of canvass or bid
was made awarding the contract to Fernandez, signed by petitioner as requisitioner, by de
Vera, as Acting Treasurer and Bonifacio Salazar, as Chairman on Awards. 7
A purchase and requisition for supplies dated September 13, 1967 addressed to
Fernandez Hollow Block Factory was signed by petitioner and de Vera for 293 culverts of
various sizes. 8
A report of inspection was signed by de Vera and initialed by Tobias certifying to the
delivery of said 293 reinforced concrete pipes valued at P10,692.00 by Fernandez at the
jobsites of the municipality. 9 Delivery receipt No. 402 or 492 issued by Fernandez dated
October 29, 1967 attests to the delivery of said 293 concrete pipes. Across the same,
Tobias wrote he inspected and verified the deliveries. 1 0 The taxpayer's certificate dated
September 29, 1967 executed by Adolfo de los Santos for Fernandez was sworn before
petitioner and was initialed by Tobias on October 29, 1967. 1 1
The payment of P10,692.00 to Fernandez was entered by de Vera on page 58 of the
Polomolok Official Cash Book. 1 2 The same payment also appeared in the ledger of
Polomolok as an expenditure for 1967-68 and in the Polomolok Municipal Treasurer's
Journal. 1 3
It is on the basis of the foregoing circumstances and documents that the municipal
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 voucher for payment duly certified by de Vera was approved for payment by petitioner. The
payment appears to have been received by Fernandez. 1 4
Although evidence was adduced tending to show that only 24 culverts were delivered to
the municipality, there is no showing that petitioner knew of such fact. Indeed, what
appears is that what petitioner knew was that the 293 culverts requisitioned were
delivered as shown by the supporting documents. During the administrative investigation
and the preliminary investigation, petitioner asked that an ocular inspection be conducted
to verify the actual quantity of culverts delivered not only at the back of the municipal
building but also in the other job sites, but this was not heeded. Even during the trial, a
similar representation of petitioner appears to have fallen on deaf ears.LexLib

There is no showing that petitioner had anything to do with the alleged falsification much
less that he profited from the effects of the crime. To hold him liable with the accountable
public official for malversation through falsification of public documents, clear and
convincing evidence of conspiracy must be adduced. Otherwise, his liability if at all shall be
individual depending on his participation in the commission of the offense. Unfortunately
no such evidence has been adduced to support his conviction even on this account.
What appears in this case is that petitioner as a public official acted in response to a
public need. By so doing this prosecution was set in motion by his political adversaries.
With the slender evidence on record, his vindication is in order.
WHEREFORE, the judgment appealed from is hereby REVERSED AND SET ASIDE and
another judgment is hereby rendered acquitting petitioner Tomas Bayan of the offense
charged with costs de oficio.
SO ORDERED.
Narvasa, Cruz, Griño-Aquino and Medialdea, JJ., concur.
Footnotes

1. Page 38, Rollo.

2. Pages 27 to 35, Rollo.
3. Pages 13 to 14, Rollo.

4. Exhibits D and H.
5. TSN, pages 502 to 508.
6. Exhibit I.
7. Exhibits N, B, C, D, J, K and L.
8. Exhibits F, F-1 and F-2.

9. Exhibits M and M-1.

10. Exhibit O.
11. Exhibit E.
12. Exhibits P and P-1.
13. Exhibits Q and Q-1; R and R-1.
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 14. Exhibits D and H.

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